- 1 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL REVISION PETITION NO.100075 OF 2023 [397(CR.PC)/438(BNSS)] BETWEEN: BASAVARAJ, S/O MALLAPPA VAJJARAMATTI (KULALI), AGE: MAJOR, OCC. NIL, R/O. KALPAD GALLI, MAHALINGAPUR, TQ. RABAKAVI-BANAHATTI, DIST. BAGALKOTE. … PETITIONER (BY SRI SRINIVAS B.NAIK, ADVOCATE) AND: BHIMAPPA S/O. SHIVAPPA KONNUR, AGE: MAJOR, OCC. AGRICULTURE AND ADVOCATE R/O. BELAGALI, TQ. MUDHOL, DIST. BAGALKOTE-587101. … RESPONDENT (BY SRI M.C.HUKKERI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C 1973, SEEKING TO CALL FOR THE RECORDS AND ALLOW THIS REVISION PETITION AND SET ASIDE THE JUDGMENT AND ORDER DATED 03.02.2023 PASSED IN CRIMINAL APPEAL NO. 5048/2022 ON THE FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOTE, SITTING AT JAMKHANDI AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 24.08.2022 PASSED IN CC NO. 182/2019 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC MUDHOL, FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND THEREBY ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.24 14:24:43 +0530 - 2 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging order dated 03.02.2023 passed by I Addl. District and Sessions Judge, Bagalkot sitting at Jamkhandi (‘Appellate Court’ for short) in Crl.Appeal no.5048/2022 and judgment/order dated 24.08.2022 passed by Additional Senior Civil Judge and JMFC, Mudhol (‘trial Court’ for short) in C.C.no.182/2019, this revision petition is filed. 2. Sri Srinivas B.Naik, learned counsel for petitioner submitted that respondent (complainant) had filed a private complaint under Section 200 of Code of Criminal Procedure, 1973 (‘CrPC’ for short) alleging that accused (petitioner) was earlier a Pigmi Collection Agent. Complainant was running a medical shop at Basaveshwar Circle, Mahalingapur and had sought hand loan of Rs.8,00,000/- for business and to develop agricultural lands agreeing to return same within two months. It was further stated, though amount was lent by complainant during 1st week of August, 2018, when he sought repayment during 1st week of October, 2018, petitioner had issued cheque - 3 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 bearing no.855741 dated 10.10.2018 drawn on Karnataka Bank Ltd., Mahalingapur Branch for Rs.8,00,000/- which when presented for collection returned dishonoured with endorsement as “Insufficient Funds” along with memo dated 12.10.2018. Within 15 days thereafter, complainant had issued legal notice dated 05.11.2018 demanding refund. Despite service of notice, petitioner neither returned money nor replied to notice and therefore, committed offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’ for short). 3. It is submitted, petitioner entered appearance, denied charges and sought to be tried. Complainant examined himself and another as PW-1 and PW-2 respectively and got marked Exs.P1 to P23. Petitioner led rebuttal evidence by examining himself as DW-1 and got marked one document as Ex.D1. 4. It was submitted, petitioner had set up substantial defence not only disputing financial capacity of complainant to pay amount but also contending that cheque was given as security for other purposes. But without proper appreciation trial Court proceeded to convict petitioner and directed him to - 4 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 pay fine amount of Rs.8,00,000/- and in default, to undergo imprisonment for 6 months. Aggrieved, petitioner had filed Crl.Appeal no.5048/2022. But Appellate Court without re-appreciation or consideration of contentions confirmed judgment passed by trial Court. 5. It was submitted, during cross-examination it was elicited from PW-1 that on day petitioner had sought financial assistance from respondent, he did not have any money with him and had arranged Rs.50,000/- by withdrawing from State Bank of India, Mudhol, borrowed Rs.7,00,000/- from his father and another sum of Rs.50,000/- was borrowed from his brother. This would indicate that complainant did not have financial capacity to lend huge sum of Rs.8,00,000/- as alleged. Attention was drawn to admission during cross-examination, about complainant not knowing particulars about bank from which his friend had withdrawn money, so as to cast doubt about complainant’s version of having lent money. In view of above admissions, petitioner had probabilised defence. Therefore, trial Court ought to have removed presumption under Section 139 of NI Act and for failure to establish offence - 5 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 beyond reasonable doubt, ought to have dismissed complaint. Failure would call for interference. 6. On other hand, Sri M.C.Hukkeri, learned counsel for complainant sought to justify impugned judgments/orders. It was submitted, scope for interference with concurrent findings of fact in revision petition was extremely limited and both Courts on due appreciation of law and facts passed judgments/orders. It was submitted, in view of specific deposition by PW-2 that sum of Rs.8,00,000/- was handed over by complainant to accused in his presence, both grounds urged would be untenable and sought for dismissal of revision. 7. Heard learned counsel and perused impugned judgments/orders. 8. From above, only point that arises for consideration is: "Whether petitioner/accused establishes that impugned judgments/orders passed by trial Court and Appellate Court suffer from perversity and call for interference?” 9. At outset, this is a revision petition filed under Section 397 read with Section 401 of CrPC and as held by - 6 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander & Another reported in (2012) 9 SCC 460, normally interference in revision would be only on questions of law. While passing impugned judgment/order, trial Court has referred to deposition of PW-1 – complainant wherein he has stated about manner in which hand loan of Rs.8,00,000/- was obtained by petitioner and for repayment of which, Ex.P1- Cheque was issued. It also took note of date of presentation of cheque, date of dishonour, date of receipt of intimation of dishonour, date of issuance of legal notice as well as date of service of said notice on drawer of cheque and filing of complaint being within timeline stipulated under Section 138 of NI Act. It also observed that petitioner had taken up two definite defences, firstly disputing financial capacity of complainant to pay amount and secondly about cheque having been given as security for transaction between Mahesh Huvappa Kalal. 10. While considering said contention, it noted signature of petitioner on Ex.P1 was not disputed, thereby attracting presumption under Section 118 as well as Section 139 of NI Act. It also referred to deposition of PW-2 that - 7 - NC: 2025:KHC-D:3594 CRL.RP No. 100075 of 2023 amount of Rs.8,00,000/- was paid by complainant to petitioner in his presence and despite cross-examination, nothing material was elicited so as to cast doubt or probabilize defence. In appeal, learned District Judge on re-appreciation confirmed findings of trial Court. 11. From above, it is seen that both Courts have based findings about financial capacity as well as addressed contention about cheque having been given as security while passing impugned judgments/orders. This Court in Kishan Rao v/s Shankar Gouda reported in 2018 (8) SCC 165 has held mere contention about cheque having been given as security would not be sufficient without specific evidence as presumption under Sections 118 and 139 of NI Act would enure to complainant. Therefore, it cannot be said that findings of trial Court and Appellate Court are without any basis, or based on unacceptable evidence or ignoring any acceptable evidence or that the conclusions arrived at are perverse. In view of above, point for consideration is answered in negative. Consequently, revision petition is dismissed. SD/- (RAVI V.HOSMANI) JUDGE RH_CT:PA